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EXHIBIT 4
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Loan No. 31-0923243
EROS MANAGEMENT & REALTY, LLC, as mortgagor
to
WELLS FARGO BANK, NATIONAL ASSOCIATION, as mortgagee
AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
Dated: As of June 11, 2014
35*
Location: 345 -351 West Street
County: New York
Block: 759
Lot: 14
PREPARED FOR OR BY AND UPON
RECORDATION RETURN TO:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
150 E. 42nd Street, 38th Floor
New York, New York 10017
Attention: Loan Administration
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AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
11*
"Security Instrument") is made as of this day of June, 2014, by EROS MANAGEMENT
& REALTY, LLC, a New York limited liability company, having its principal place of business
35*
at 345 West Street, New York, New York 10001, as mortgagor (together with itspermitted
successors and assigns, "Borrower") for the benefit of WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, with a mailing address at Wells Fargo Center,
2nd
1901 Harrison Street, Floor, MAC A0227-020, Oakland, California 94612, as mortgagee
(together with its successors and assigns, "Lender"). All capitalized terms not defined herein
shall have the respective meanings set forth in the Loan Agreement (defined below).
RECITALS:
A. Borrower is the owner of the fee estate situated at street address 345 West
35th
Street, City of New York, County of New York, State of New York more particularly
described in Exhibit A attached hereto and made a part hereof (the "Real Estate").
B. Lender is the present owner and holder of, and the Borrower is the current
obligor under, those certain promissory notes (the "Prior Notes") described on Schedule I
annexed hereto and made a part hereof in the aggregate unpaid principal amount of
$30,000,000.00.
C. The Prior Notes are secured by those certain mortgages (the "Prior
Mortgages") described on Schedule II annexed hereto and made a part hereof, encumbering the
Real Estate.
D. On the date hereof, the Borrower has executed and delivered to Lender a
certain promissory note (the "Gap Note"; the Gap Note, together with the Prior Notes,
hereinafter collectively referred to as the "Existing Notes") evidencing indebtedness in the
original principal amount of $17,000,000.00 (the "New Indebtedness"), and the Borrower has
executed and delivered to Lender a certain Gap Mortgage and Security Agreement (the "Gap
Mortgage"; the Gap Mortgages, together with the Prior lwortgage, hereinafter collectively
referred to as the "Existing Mortgages"), which, among other things, secures the New
Indebtedness.
E. On the date hereof, Borrower and Lender are amending, restating and
consolidating the Existing Notes pursuant to a certain Amended, Restated and Consolidated
Promissory Note (as the same may hereafter be amended, modified, consolidated, extended or
replaced, the "Note").
F. Borrower and Lender desire to (1) combine, consolidate, amend and
restate in itsentirety the indebtedness evidenced by the Existing Notes and the New Indebtedness
and all such indebtedness as so combined, consolidated, amended and restated shall constitute a
single indebtedness in the aggregate original principal amount of $47,000,000.00 (the
Indebtedness"
"Consolidated or the "Loan") or so much thereof as may be advanced pursuant
to that certain Loan Agreement dated as of the date hereof between Borrower and Lender (as the
same may be amended, restated, replaced, supplemented or otherwise modified from time to
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time, the "Loan Agreement"), all on the terms and conditions provided in the Note and (2)
consolidate and coordinate the liens of the Existing Mortgages to create a single, consolidated
lien (the "Consolidated Lien") on the Property (hereinafter defined), which Consolidated Lien
will be a valid first and prior lien upon the Property securing the Consolidated Indebtedness, and
(3) amend and restate the terms and conditions contained in the Existing Mortgages as
hereinafter set forth.
G. Borrower and Lender intend these Recitals to be a material part of this
Security Instrument.
NOW, THEREFORE, in consideration of the property and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:
I. This Security Instrument constitutes a mortgage and security. agreement
encumbering the Property upon the terms and conditions set forth herein to secure the
Consolidated Indebtedness, it being understood and agreed that the Property secures the
repayment of the entire Consolidated Indebtedness.
II. The liens of the Existing Mortgages are hereby merged and consolidated
without priority one over the other and to the same extent and as fully as if the Consolidated
Indebtedness secured thereby has been originally advanced at the time of the making, execution,
delivery and recordation of the Existing Mortgages, as ifthe Existing Mortgages at the time of
their making, execution, delivery and recordation had been made to secure an indebtedness to
Lender in the aggregate principal amount of the Consolidated Indebtedness and as such are
hereby spread to encumber the Property.
III. Borrower hereby represents and warrants that the indebtedness evidenced
by the Existing Notes as consolidated constitute a single indebtedness in the principal amount of
the Consolidated Indebtedness as evidenced by the Note, and that the Existing Mortgages as
hereby consolidated constitute a single valid first priority lien upon the Property fully securing
the Consolidated Indebtedness, evidenced by the Note together with interest thereon as provided
therein.
IV. From and after the date hereof, the terms, covenants and provisions of the
Existing Mortgages are hereby modified, consolidated, amended and restated in their entirety as
provided herein, and the Existing Mortgages, as so modified, consolidated, amended and restated
are hereby ratified and confirmed in all respects by Borrower.
V. Neither this Security Instrument nor anything contained herein shall be
construed as a substitution or novation of the indebtedness evidenced by the Existing Notes or of
the Existing Mortgages, which shall remain in full force and effect, as hereby confirmed,
modified, consolidated, restated and superseded.
VI. This Security Instrument is given pursuant to the Loan Agreement, and
payment, fulfillment, and performance by Borrower of its obligations thereunder and under the
other Loan Documents are secured hereby, and each and every term and provision of the Loan
Agreement and the Note, including the rights, remedies, obligations, covenants, conditions,
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agreements, indemnities, representations and warranties of the parties therein, are hereby
incorporated by reference herein as though set forth in full and shall be considered a part of this
Security Instrument.
VII. Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Loan Agreement.
NOW FURTHER, in consideration of the making of the Loan by Lender and the
covenants, agreements, representations and warranties set forth in this Security Instrument.
Article 1 - GRANTS OF SECURITY
Section 1.1. Property Mortgaged. Borrower does hereby irrevocably mortgage, grant,
bargain, sell, pledge, assign, warrant, transfer, convey and grant a security interest to Lender and
its successors and assigns in and to the following property, rights, interests and estates now
owned, or hereafter acquired by Borrower (collectively, the "Property"):
(a) Land. The real property described in Exhibit A attached hereto and made a part
hereof (collectively, the "Land");
(b) Additional Land. All additional lands, estates and development rights hereafter
acquired by Borrower for use in connection with the Land and the development of the Land and
all additional lands and estates therein which may, from time to time, by supplemental mortgage
or otherwise be expressly made subject to the lien of this Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements and improvements now or hereafter erected or
located on the Land (collectively, the "Improvements");
(d) Easements. All easements, rights-of-way or use, rights, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air
rights and development rights, and all estates, rights, titles, interests, privileges, liberties,
servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the Improvements, and every
part and parcel thereof, with the appurtenances thereto;
(e) Fixtures and Personal Property. All machinery, equipment, fixtures (including,
but not limited to, allheating, air conditioning, plumbing, lighting, communications and elevator
fixtures), furniture, software used in or to operate any of the foregoing, equipment, computer
software and hardware, fixtures, inventory, materials, supplies, beds, bureaus, chiffoniers, chests,
chairs, desks, lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains,
shades, venetian blinds, screens, paintings, hangings, pictures, divans, couches, luggage carts,
luggage racks, stools, sofas, chinaware, linens, pillows, blankets, glassware, food carts,
cookware, dry cleaning facilities, dining room wagons, keys or other entry systems, bars, bar
fixtures, liquor and other drink dispensers, icemakers, radios, television sets, intercom and
paging equipment, electric and electronic equipment, dictating equipment, private telephone
systems, medical equipment, potted plants, fire prevention and extinguishing apparatus,
escalators, fittings, plants, apparatus, stoves, ranges, refrigerators, laundry machines, tools,
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motors, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, waxing
and polishing equipment, call systems, brackets, electrical signs, bulbs, bells, ash and fuel,
conveyors, lockers, shelving, spotlighting equipment, dishwashers, garbage disposals, and all
washers and dryers and other property of every kind and nature whatsoever owned by Borrower,
or in which Borrower has or shall have an interest, now or hereafter located upon the Land and
the Improvements, or appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Land and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower has
or shall have an interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, or usable in connection with the present or future operation and occupancy
of the Land and the Improvements and all items of personal property located within or adjacent
Equipment"
to the Improvements and included within the definition of "Property and and
"Inventories"
under the Uniform System of Accounts (collectively, the "Personal Property"),
and the right, title and interest of Borrower in and to any of the Personal Property which may be
subject to any security interests, as defined in the Uniform Commercial Code, as adopted and
enacted by the state or states where any of the Property is located (the "Uniform Commercial
Code"), and all proceeds and products of the above;
(f) Leases and Rents. All leases, subleases, subsubleases, lettings, licenses,
concessions or other agreements (whether written or oral) pursuant to which any Person is
granted a possessory interest in, or right to use or occupy all or any portion of the Land and the
Improvements, and every modification, amendment or other agreement relating to such leases,
subleases, subsubleases, or other agreements entered into in connection with such leases,
subleases, subsubleases, or other agreements and every guarantee of the performance and
observance of the covenants, conditions and agreements to be performed and observed by the
other party thereto, heretofore or hereafter entered into, whether before or after the filing by or
against Borrower of any petition for relief under any Creditors Rights Laws (collectively, the
"Leases") and all right, title and interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited thereunder to secure the
performance by the lessees of their obligations thereunder and all rents, additional rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties
(including, without limitation, all oil and gas or other mineral royalties and bonuses), income,
receivables, receipts, revenues, deposits (including, without limitation, security, utility and other
deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration
of whatever form or nature received by or paid to or for the account of or benefit of Borrower or
its agents or employees from any and all sources arising from or attributable to the Property,
including, all receivables, customer obligations, installment payment obligations and other
obligations now existing or hereafter arising or created out of the sale, lease, sublease, license,
concession or other grant of the right of the use and occupancy of property or rendering of
services by Borrower or Manager, all revenues and credit card receipts collected from guest
rooms, restaurants, bars, meeting rooms, banquet rooms and recreational facilities, all
receivables, customer obligations, installment payment obligations and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease, license, concession or
other grant of the right of the use and occupancy of property or rendering of services by
Borrower or any operator or manager of the hotel or the commercial space located in the
Property or acquired from others (including, without limitation, from the rental of any office
space, retail space, guest rooms or other space, halls, stores, and offices, and deposits securing
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reservations of such space), license, lease, sublease and concession fees and rentals, health club
membership fees, food and beverage wholesale and retail sales, service charges, bars, mini-bars,
vending machine sales and proceeds, telephone and television systems, guest laundry, and any
other items of revenue, receipts or other income as identified in the most recent edition of the
Uniform System of Accounts for Hotels, as from time to time amended and as adopted by the
American Hotel and Motel Association, and any net parking revenue, income and proceeds
received from food and beverage operations and from catering services conducted from the
Improvements even though rendered outside of the Improvements, in any case, and proceeds, if
any, from business interruption or other loss of income insurance whether paid or accruing
before or after the filing by or against Borrower of any petition for relief under any Creditors
Rights Laws (collectively, the "Rents") and all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. All insurance proceeds in respect of the Property under any
insurance policies covering the Property, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage
to the Property (collectively, the "Insurance Proceeds");
(h) Condemnation Awards. All condemnation awards, including interest thereon,
which may heretofore and hereafter be made with respect to the Property by reason of any taking
or condemnation, whether from the exercise of the right of eminent domain (including, but not
limited to, any transfer made in lieu of or in anticipation of the exercise of the right), or for a
change of grade, or for any other injury to or decrease in the value of the Property (collectively,
the "Awards");
(i) Tax Certiorari. All refunds, rebates or credits in connection with reduction in real
estate taxes and assessments charged against the Property as a result of tax certiorari or any
applications or proceedings for reduction;
(j) Rights. The right, in the name and on behalf of Borrower, to appear in and defend
any action or proceeding brought with respect to the Property and to commence any action or
proceeding to protect the interest of Lender in the Property;
(k) Agreements. All agreements, contracts, certificates, instruments, franchises,
permits, licenses (including, without limitation, any applicable liquor licenses), plans,
specifications and other documents, now or hereafter entered into, and all rights therein and
thereto, respecting or pertaining to the use, occupation, construction, management or operation of
the Land and any part thereof and any Improvements or any business or activity conducted on
the Land and any part thereof and all right, title and interest of Borrower therein and thereunder,
including, without limitation, the right, upon the happening of any Event of Default hereunder, to
receive and collect any sums payable to Borrower thereunder;
(1) Intangibles. All tradenames, trademarks, servicemarks, logos, copyrights,
goodwill, books and records and all other general intangibles relating to or used in connection
with the operation of the Property;
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(m) Accounts. All reserves, escrows and deposit accounts maintained by Borrower
with respect to the Property, including without limitation, the Accounts and all cash, checks,
drafts, certificates, securities, investment property, financial assets, instruments and other
property held therein from time to time and all proceeds, products, distributions or dividends or
substitutions thereon and thereof;
(n) Proceeds. All proceeds of any of the foregoing items set forth in subsections (a)
through (0) including, without limitation, Insurance Proceeds and Awards, into cash or
liquidation claims; and
(0) Hotel Management Agreement. The Hotel Management Agreement (as the same
may be amended, restated, replaced, supplemented, assigned or otherwise modified from time to
time) and all contracts and agreements now or hereafter entered into relating to the ownership or
operation or management of the Property or the Improvements or any portion of either of them,
including,. without limitation, management agreements, franchise agreements, co-tenancy
agreements, service contracts, maintenance contracts, equipment leases, personal property leases
and any contracts or documents relating to construction on any part of the Property or the
Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental
approvals) or to the management or operation of any part of the Property or the Improvements
and any and all warranties and guaranties relating to the Property or the Improvements or any
fixtures, equipment or personal property owned by Borrower and located on and/or used in
connection with the Property, together with all revenue, income and other benefits thereof and all
claims, judgments, awards and settlements arising thereunder;
(p) Accounts Receivables. All right, titleand interest of Borrower arising from the
operation of the Land and the Improvements in and to all payments for goods or property sold or
leased or for services rendered, whether or not yet earned by performance, and not evidenced by
an instrument or chattel paper (hereinafter referred to as "Accounts Receivable") including,
without limiting the generality of the foregoing, (i)all accounts, contract rights, book debts, and
notes arising from the operation of a hotel on the Land and the Improvements or arising from the
sale, lease or exchange of goods or other property and/or the performance of services, (ii)
Borrower's rights to payment from any consumer credit/charge card organization or entities
which sponsor and administer such cards as the American Express Card, the Visa Card and the
Mastercard, (iii)Borrower's rights in, to and under all purchase orders for goods, services or
other property, (iv) Borrower's rights to any goods, services or other property represented by any
of the foregoing, (v) monies due to or to become due to Borrower under all contracts for the sale,
lease or exchange of goods or other property and/or the performance of services including the
right to payment of any interest or finance charges in respect thereto (whether or not yet earned
by performance on the part of Borrower) and (vi) all collateral security and guaranties of any
kind given by any person or entity with respect to any of the foregoing. Accounts Receivable
shall include those now existing or hereafter created, substitutions therefor, proceeds (whether
cash or non-cash, movable or immovable, tangible or intangible) received upon the sale,
exchange, transfer, collection or other disposition or substitution thereof and any and all of the
foregoing and proceeds therefrom;
(q) Parking Rights. All estate, right, title, interest and other claim of the Borrower
with respect to any parking facilities located other than on the Land and used or intended to be
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used in connection with the operation, ownership or use of the Land, any and all replacements
and substitutions for the same, and any other parking rights easements, covenants and other
interests in the parking facilities acquired by the Borrower for the use of tenants or occupants of
the Improvements (all of the foregoing estate, right, title, interest and other claim being
hereinafter collectively called "Parking Rights"); and
(r) Other Rights. Any and allother rights of Borrower in and to the items set forth in
subsections (a) through (q) above.
Section 1.2. ASSIGNMENT OF RENTS. Borrower hereby absolutely and unconditionally
assigns to Lender all of Borrower's right, title and interest in and to all current and future Leases
and Rents; it being intended by Borrower that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Nevertheless, subject to the terms
of the Loan Agreement and Section 8.1(h) of this Security Instrument, Lender grants to Borrower
a revocable license to (i) collect, receive, use and enjoy the Rents and Borrower shall hold the
Rents, or a portion thereof sufficient to discharge all current sums due on the Debt, for use in the
payment of such sums, and (ii)enforce the terms of the Leases.
Section 1.3. SECURITY AGREEMENT. This Security Instrument is both a real property
agreement"
mortgage and a "security within the meaning of the Uniform Commercial Code. The
Property includes both real and personal property and all other rights and interests, whether
tangible or intangible in nature, of Borrower in the Property. By executing and delivering this
Security Instrument, Borrower hereby grants to Lender, as security for the Obligations
(hereinafter defined), a security interest in the Property to the full extent that the Property may be
subject to the Uniform Commercial Code.
"fixtures"
Section 1.4. FIXTURE FILING. Certain of the Property is or will become (as
that term is defined in the Uniform Commercial Code) on the Land, and this Security Instrument,
upon being filed for record in the real estate records of the city or county wherein such fixtures
are situated, shall operate also as a financing statement filed as a fixture filing in accordance with
the applicable provisions of said Uniform Commercial Code upon such of the Property that is or
may become fixtures.
Section 1.5. CONDITIONS TO GRANT. TO HAVE AND TO HOLD the above granted
and described Property unto and to the use and benefit of Lender and itssuccessors and assigns,
forever; PROVIDED, HOWEVER, these presents are upon the express condition that, ifLender
shall be well and truly paid the Debt at the time and in the manner provided in the Note, the Loan
Agreement and this Security Instrument, if Borrower shall well and truly perform the Other
Obligations as set forth in this Security Instrument and shall well and truly abide by and comply
with each and every covenant and condition set forth herein and in the Note, the Loan
Agreement and the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void.
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1. DEBT. This Security Instrument and the grants, assignments and transfers
made in Article 1 are given for the purpose of securing the Debt.
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Section 2.2. OTHER OBLIGATIONS. This Security Instrument and the grants,
assignments and transfers made in Article 1 are also given for the purpose of securing the
performance of the following (the "Other Obligations"): (a) all other obligations of Borrower
contained herein; (b) each obligation of Borrower contained in the Loan Agreement and any
other Loan Document; and (c) each obligation of Borrower contained in any renewal, extension,
amendment, modification, consolidation, change of, or substitution or replacement for, all or any
part of the Note, the Loan Agreement or any other Loan Document.
Section 2.3. DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the payment
of the Debt and the performance of the Other Obligations shall be referred to collectively herein
"Obligations."
as the
Section 2.4. PAYMENT OF DEBT. Borrower will pay the Debt at the time and in the
manner provided in the Loan Agreement, the Note and this Security Instrument.
Section 2.5. INCORPORATION BY REFERENCE. All the covenants, conditions and
agreements contained in (a) the Loan Agreement, (b) the Note and (c) all and any of the other
Loan Documents, are hereby made a part of this Security Instrument to the same extent and with
the same force as if fully set forth herein.
Article 3 - PROPERTY COVENANTS
Borrower covenants and agrees that:
Section 3.1. INSURANCE. Borrower shall obtain and maintain, or cause to be obtained
and maintained, in full force and effect at all times insurance with respect to Borrower and the
Property as required pursuant to the Loan Agreement.
Section 3.2. TAXES AND OTHER CHARGES. Borrower shall pay all real estate and
personal property taxes, assessments, water rates or sewer rents (collectively "Taxes"), ground
rents, maintenance charges, impositions (other than Taxes), and any other charges, including,
without limitation, vault charges and license fees for the use of vaults, chutes and similar areas
adjoining the Property (collectively, "Other Charges"), now or hereafter levied or assessed or
imposed against the Property or any part thereof in accordance with the Loan Agreement.
Section 3.3. LEASES. Borrower shall not (and shall not permit any other applicable
Person to) enter in any Leases for all or any portion of the Property unless in accordance with the
provisions of the Loan Agreement.
Section 3.4. WARRANTY OF TITLE. Borrower has good, indefeasible, marketable and
insurable titleto the Property and has the right to mortgage, grant, bargain, sell,pledge, assign,
warrant, transfer and convey the same. Borrower possesses an unencumbered fee simple
absolute estate in the Land and the Improvements except for the Permitted Encumbrances, such
other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan
Documents. This Security Instrument, when properly recorded in the appropriate records,
together with any Uniform Commercial Code financing statements required to be filed in
connection therewith, will create (a) a legal, valid, and perfected first priority lien on the
Property, subject only to Permitted Encumbrances and the liens created by the Loan Documents
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and (b) a legal, valid, and perfected first priority security interests in and to, and legal, valid, and
perfected collateral assignments of, allpersonalty (including the Leases), all in accordance with
the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such
other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan
Documents. Borrower shall forever warrant, defend and preserve the title and the validity and
priority of the lien of this Security Instrument and shall forever warrant and defend the same to
Lender against the claims of all Persons whomsoever.
Section 3.5. PAYMENT FOR LABOR AND MATERIALS. Subject to Borrower's right to
contest any Work Charge (defined herein) pursuant to the terms of the Loan Agreement,
Borrower will promptly pay (or cause to be paid) when due all bills and costs for labor,
materials, and specifically fabricated materials incurred in connection with the Property (each, a
"Work Charge") and never permit to exist beyond the due date thereof in respect of the
Property or any part thereof any lien or security interest, even though inferior to the liens and the
security interests hereof, and in any event never permit to be created or exist in respect of the
Property or any part thereof any other or additional lien or security interest other than the liens or
security interests hereof except for the Permitted Encumbrances. Borrower represents there are
no claims for payment for work, labor or materials affecting the Property which are or may
become a lien prior to, or of equal priority with, the liens created by the Loan Documents.
Article 4 - FURTHER ASSURANCES
Section 4.1. COMPLIANCE WITH LOAN AGREEMENT. Borrower shall comply with all
covenants set forth in the Loan Agreement relating to acts or other further assurances to be made
on the part of Borrower in order to protect and perfect the lien or security interest hereof upon,
and in the interest of Lender in, the Property.
Section 4.2. AUTHORIZATION TO FILE FINANCING STATEMENTS: POWER OF ATTORNEY.
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FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 EXHIBIT 4 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 Loan No. 31-0923243 EROS MANAGEMENT & REALTY, LLC, as mortgagor to WELLS FARGO BANK, NATIONAL ASSOCIATION, as mortgagee AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING Dated: As of June 11, 2014 35* Location: 345 -351 West Street County: New York Block: 759 Lot: 14 PREPARED FOR OR BY AND UPON RECORDATION RETURN TO: WELLS FARGO BANK, NATIONAL ASSOCIATION 150 E. 42nd Street, 38th Floor New York, New York 10017 Attention: Loan Administration NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this 11* "Security Instrument") is made as of this day of June, 2014, by EROS MANAGEMENT & REALTY, LLC, a New York limited liability company, having its principal place of business 35* at 345 West Street, New York, New York 10001, as mortgagor (together with itspermitted successors and assigns, "Borrower") for the benefit of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, with a mailing address at Wells Fargo Center, 2nd 1901 Harrison Street, Floor, MAC A0227-020, Oakland, California 94612, as mortgagee (together with its successors and assigns, "Lender"). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement (defined below). RECITALS: A. Borrower is the owner of the fee estate situated at street address 345 West 35th Street, City of New York, County of New York, State of New York more particularly described in Exhibit A attached hereto and made a part hereof (the "Real Estate"). B. Lender is the present owner and holder of, and the Borrower is the current obligor under, those certain promissory notes (the "Prior Notes") described on Schedule I annexed hereto and made a part hereof in the aggregate unpaid principal amount of $30,000,000.00. C. The Prior Notes are secured by those certain mortgages (the "Prior Mortgages") described on Schedule II annexed hereto and made a part hereof, encumbering the Real Estate. D. On the date hereof, the Borrower has executed and delivered to Lender a certain promissory note (the "Gap Note"; the Gap Note, together with the Prior Notes, hereinafter collectively referred to as the "Existing Notes") evidencing indebtedness in the original principal amount of $17,000,000.00 (the "New Indebtedness"), and the Borrower has executed and delivered to Lender a certain Gap Mortgage and Security Agreement (the "Gap Mortgage"; the Gap Mortgages, together with the Prior lwortgage, hereinafter collectively referred to as the "Existing Mortgages"), which, among other things, secures the New Indebtedness. E. On the date hereof, Borrower and Lender are amending, restating and consolidating the Existing Notes pursuant to a certain Amended, Restated and Consolidated Promissory Note (as the same may hereafter be amended, modified, consolidated, extended or replaced, the "Note"). F. Borrower and Lender desire to (1) combine, consolidate, amend and restate in itsentirety the indebtedness evidenced by the Existing Notes and the New Indebtedness and all such indebtedness as so combined, consolidated, amended and restated shall constitute a single indebtedness in the aggregate original principal amount of $47,000,000.00 (the Indebtedness" "Consolidated or the "Loan") or so much thereof as may be advanced pursuant to that certain Loan Agreement dated as of the date hereof between Borrower and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 time, the "Loan Agreement"), all on the terms and conditions provided in the Note and (2) consolidate and coordinate the liens of the Existing Mortgages to create a single, consolidated lien (the "Consolidated Lien") on the Property (hereinafter defined), which Consolidated Lien will be a valid first and prior lien upon the Property securing the Consolidated Indebtedness, and (3) amend and restate the terms and conditions contained in the Existing Mortgages as hereinafter set forth. G. Borrower and Lender intend these Recitals to be a material part of this Security Instrument. NOW, THEREFORE, in consideration of the property and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: I. This Security Instrument constitutes a mortgage and security. agreement encumbering the Property upon the terms and conditions set forth herein to secure the Consolidated Indebtedness, it being understood and agreed that the Property secures the repayment of the entire Consolidated Indebtedness. II. The liens of the Existing Mortgages are hereby merged and consolidated without priority one over the other and to the same extent and as fully as if the Consolidated Indebtedness secured thereby has been originally advanced at the time of the making, execution, delivery and recordation of the Existing Mortgages, as ifthe Existing Mortgages at the time of their making, execution, delivery and recordation had been made to secure an indebtedness to Lender in the aggregate principal amount of the Consolidated Indebtedness and as such are hereby spread to encumber the Property. III. Borrower hereby represents and warrants that the indebtedness evidenced by the Existing Notes as consolidated constitute a single indebtedness in the principal amount of the Consolidated Indebtedness as evidenced by the Note, and that the Existing Mortgages as hereby consolidated constitute a single valid first priority lien upon the Property fully securing the Consolidated Indebtedness, evidenced by the Note together with interest thereon as provided therein. IV. From and after the date hereof, the terms, covenants and provisions of the Existing Mortgages are hereby modified, consolidated, amended and restated in their entirety as provided herein, and the Existing Mortgages, as so modified, consolidated, amended and restated are hereby ratified and confirmed in all respects by Borrower. V. Neither this Security Instrument nor anything contained herein shall be construed as a substitution or novation of the indebtedness evidenced by the Existing Notes or of the Existing Mortgages, which shall remain in full force and effect, as hereby confirmed, modified, consolidated, restated and superseded. VI. This Security Instrument is given pursuant to the Loan Agreement, and payment, fulfillment, and performance by Borrower of its obligations thereunder and under the other Loan Documents are secured hereby, and each and every term and provision of the Loan Agreement and the Note, including the rights, remedies, obligations, covenants, conditions, 2 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 agreements, indemnities, representations and warranties of the parties therein, are hereby incorporated by reference herein as though set forth in full and shall be considered a part of this Security Instrument. VII. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Loan Agreement. NOW FURTHER, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Security Instrument. Article 1 - GRANTS OF SECURITY Section 1.1. Property Mortgaged. Borrower does hereby irrevocably mortgage, grant, bargain, sell, pledge, assign, warrant, transfer, convey and grant a security interest to Lender and its successors and assigns in and to the following property, rights, interests and estates now owned, or hereafter acquired by Borrower (collectively, the "Property"): (a) Land. The real property described in Exhibit A attached hereto and made a part hereof (collectively, the "Land"); (b) Additional Land. All additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the Land and the development of the Land and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument; (c) Improvements. The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (collectively, the "Improvements"); (d) Easements. All easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements, and every part and parcel thereof, with the appurtenances thereto; (e) Fixtures and Personal Property. All machinery, equipment, fixtures (including, but not limited to, allheating, air conditioning, plumbing, lighting, communications and elevator fixtures), furniture, software used in or to operate any of the foregoing, equipment, computer software and hardware, fixtures, inventory, materials, supplies, beds, bureaus, chiffoniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains, shades, venetian blinds, screens, paintings, hangings, pictures, divans, couches, luggage carts, luggage racks, stools, sofas, chinaware, linens, pillows, blankets, glassware, food carts, cookware, dry cleaning facilities, dining room wagons, keys or other entry systems, bars, bar fixtures, liquor and other drink dispensers, icemakers, radios, television sets, intercom and paging equipment, electric and electronic equipment, dictating equipment, private telephone systems, medical equipment, potted plants, fire prevention and extinguishing apparatus, escalators, fittings, plants, apparatus, stoves, ranges, refrigerators, laundry machines, tools, 3 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 motors, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors, lockers, shelving, spotlighting equipment, dishwashers, garbage disposals, and all washers and dryers and other property of every kind and nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Borrower, or in which Borrower has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements and all items of personal property located within or adjacent Equipment" to the Improvements and included within the definition of "Property and and "Inventories" under the Uniform System of Accounts (collectively, the "Personal Property"), and the right, title and interest of Borrower in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code, as adopted and enacted by the state or states where any of the Property is located (the "Uniform Commercial Code"), and all proceeds and products of the above; (f) Leases and Rents. All leases, subleases, subsubleases, lettings, licenses, concessions or other agreements (whether written or oral) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of the Land and the Improvements, and every modification, amendment or other agreement relating to such leases, subleases, subsubleases, or other agreements entered into in connection with such leases, subleases, subsubleases, or other agreements and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto, heretofore or hereafter entered into, whether before or after the filing by or against Borrower of any petition for relief under any Creditors Rights Laws (collectively, the "Leases") and all right, title and interest of Borrower, its successors and assigns therein and thereunder, including, without limitation, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, including, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or Manager, all revenues and credit card receipts collected from guest rooms, restaurants, bars, meeting rooms, banquet rooms and recreational facilities, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower or any operator or manager of the hotel or the commercial space located in the Property or acquired from others (including, without limitation, from the rental of any office space, retail space, guest rooms or other space, halls, stores, and offices, and deposits securing 4 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 reservations of such space), license, lease, sublease and concession fees and rentals, health club membership fees, food and beverage wholesale and retail sales, service charges, bars, mini-bars, vending machine sales and proceeds, telephone and television systems, guest laundry, and any other items of revenue, receipts or other income as identified in the most recent edition of the Uniform System of Accounts for Hotels, as from time to time amended and as adopted by the American Hotel and Motel Association, and any net parking revenue, income and proceeds received from food and beverage operations and from catering services conducted from the Improvements even though rendered outside of the Improvements, in any case, and proceeds, if any, from business interruption or other loss of income insurance whether paid or accruing before or after the filing by or against Borrower of any petition for relief under any Creditors Rights Laws (collectively, the "Rents") and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt; (g) Insurance Proceeds. All insurance proceeds in respect of the Property under any insurance policies covering the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property (collectively, the "Insurance Proceeds"); (h) Condemnation Awards. All condemnation awards, including interest thereon, which may heretofore and hereafter be made with respect to the Property by reason of any taking or condemnation, whether from the exercise of the right of eminent domain (including, but not limited to, any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property (collectively, the "Awards"); (i) Tax Certiorari. All refunds, rebates or credits in connection with reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction; (j) Rights. The right, in the name and on behalf of Borrower, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Lender in the Property; (k) Agreements. All agreements, contracts, certificates, instruments, franchises, permits, licenses (including, without limitation, any applicable liquor licenses), plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or any business or activity conducted on the Land and any part thereof and all right, title and interest of Borrower therein and thereunder, including, without limitation, the right, upon the happening of any Event of Default hereunder, to receive and collect any sums payable to Borrower thereunder; (1) Intangibles. All tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; 5 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 (m) Accounts. All reserves, escrows and deposit accounts maintained by Borrower with respect to the Property, including without limitation, the Accounts and all cash, checks, drafts, certificates, securities, investment property, financial assets, instruments and other property held therein from time to time and all proceeds, products, distributions or dividends or substitutions thereon and thereof; (n) Proceeds. All proceeds of any of the foregoing items set forth in subsections (a) through (0) including, without limitation, Insurance Proceeds and Awards, into cash or liquidation claims; and (0) Hotel Management Agreement. The Hotel Management Agreement (as the same may be amended, restated, replaced, supplemented, assigned or otherwise modified from time to time) and all contracts and agreements now or hereafter entered into relating to the ownership or operation or management of the Property or the Improvements or any portion of either of them, including,. without limitation, management agreements, franchise agreements, co-tenancy agreements, service contracts, maintenance contracts, equipment leases, personal property leases and any contracts or documents relating to construction on any part of the Property or the Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Property or the Improvements and any and all warranties and guaranties relating to the Property or the Improvements or any fixtures, equipment or personal property owned by Borrower and located on and/or used in connection with the Property, together with all revenue, income and other benefits thereof and all claims, judgments, awards and settlements arising thereunder; (p) Accounts Receivables. All right, titleand interest of Borrower arising from the operation of the Land and the Improvements in and to all payments for goods or property sold or leased or for services rendered, whether or not yet earned by performance, and not evidenced by an instrument or chattel paper (hereinafter referred to as "Accounts Receivable") including, without limiting the generality of the foregoing, (i)all accounts, contract rights, book debts, and notes arising from the operation of a hotel on the Land and the Improvements or arising from the sale, lease or exchange of goods or other property and/or the performance of services, (ii) Borrower's rights to payment from any consumer credit/charge card organization or entities which sponsor and administer such cards as the American Express Card, the Visa Card and the Mastercard, (iii)Borrower's rights in, to and under all purchase orders for goods, services or other property, (iv) Borrower's rights to any goods, services or other property represented by any of the foregoing, (v) monies due to or to become due to Borrower under all contracts for the sale, lease or exchange of goods or other property and/or the performance of services including the right to payment of any interest or finance charges in respect thereto (whether or not yet earned by performance on the part of Borrower) and (vi) all collateral security and guaranties of any kind given by any person or entity with respect to any of the foregoing. Accounts Receivable shall include those now existing or hereafter created, substitutions therefor, proceeds (whether cash or non-cash, movable or immovable, tangible or intangible) received upon the sale, exchange, transfer, collection or other disposition or substitution thereof and any and all of the foregoing and proceeds therefrom; (q) Parking Rights. All estate, right, title, interest and other claim of the Borrower with respect to any parking facilities located other than on the Land and used or intended to be 6 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 used in connection with the operation, ownership or use of the Land, any and all replacements and substitutions for the same, and any other parking rights easements, covenants and other interests in the parking facilities acquired by the Borrower for the use of tenants or occupants of the Improvements (all of the foregoing estate, right, title, interest and other claim being hereinafter collectively called "Parking Rights"); and (r) Other Rights. Any and allother rights of Borrower in and to the items set forth in subsections (a) through (q) above. Section 1.2. ASSIGNMENT OF RENTS. Borrower hereby absolutely and unconditionally assigns to Lender all of Borrower's right, title and interest in and to all current and future Leases and Rents; it being intended by Borrower that this assignment constitutes a present, absolute assignment and not an assignment for additional security only. Nevertheless, subject to the terms of the Loan Agreement and Section 8.1(h) of this Security Instrument, Lender grants to Borrower a revocable license to (i) collect, receive, use and enjoy the Rents and Borrower shall hold the Rents, or a portion thereof sufficient to discharge all current sums due on the Debt, for use in the payment of such sums, and (ii)enforce the terms of the Leases. Section 1.3. SECURITY AGREEMENT. This Security Instrument is both a real property agreement" mortgage and a "security within the meaning of the Uniform Commercial Code. The Property includes both real and personal property and all other rights and interests, whether tangible or intangible in nature, of Borrower in the Property. By executing and delivering this Security Instrument, Borrower hereby grants to Lender, as security for the Obligations (hereinafter defined), a security interest in the Property to the full extent that the Property may be subject to the Uniform Commercial Code. "fixtures" Section 1.4. FIXTURE FILING. Certain of the Property is or will become (as that term is defined in the Uniform Commercial Code) on the Land, and this Security Instrument, upon being filed for record in the real estate records of the city or county wherein such fixtures are situated, shall operate also as a financing statement filed as a fixture filing in accordance with the applicable provisions of said Uniform Commercial Code upon such of the Property that is or may become fixtures. Section 1.5. CONDITIONS TO GRANT. TO HAVE AND TO HOLD the above granted and described Property unto and to the use and benefit of Lender and itssuccessors and assigns, forever; PROVIDED, HOWEVER, these presents are upon the express condition that, ifLender shall be well and truly paid the Debt at the time and in the manner provided in the Note, the Loan Agreement and this Security Instrument, if Borrower shall well and truly perform the Other Obligations as set forth in this Security Instrument and shall well and truly abide by and comply with each and every covenant and condition set forth herein and in the Note, the Loan Agreement and the other Loan Documents, these presents and the estate hereby granted shall cease, terminate and be void. Article 2 - DEBT AND OBLIGATIONS SECURED Section 2.1. DEBT. This Security Instrument and the grants, assignments and transfers made in Article 1 are given for the purpose of securing the Debt. 7 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 Section 2.2. OTHER OBLIGATIONS. This Security Instrument and the grants, assignments and transfers made in Article 1 are also given for the purpose of securing the performance of the following (the "Other Obligations"): (a) all other obligations of Borrower contained herein; (b) each obligation of Borrower contained in the Loan Agreement and any other Loan Document; and (c) each obligation of Borrower contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution or replacement for, all or any part of the Note, the Loan Agreement or any other Loan Document. Section 2.3. DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the payment of the Debt and the performance of the Other Obligations shall be referred to collectively herein "Obligations." as the Section 2.4. PAYMENT OF DEBT. Borrower will pay the Debt at the time and in the manner provided in the Loan Agreement, the Note and this Security Instrument. Section 2.5. INCORPORATION BY REFERENCE. All the covenants, conditions and agreements contained in (a) the Loan Agreement, (b) the Note and (c) all and any of the other Loan Documents, are hereby made a part of this Security Instrument to the same extent and with the same force as if fully set forth herein. Article 3 - PROPERTY COVENANTS Borrower covenants and agrees that: Section 3.1. INSURANCE. Borrower shall obtain and maintain, or cause to be obtained and maintained, in full force and effect at all times insurance with respect to Borrower and the Property as required pursuant to the Loan Agreement. Section 3.2. TAXES AND OTHER CHARGES. Borrower shall pay all real estate and personal property taxes, assessments, water rates or sewer rents (collectively "Taxes"), ground rents, maintenance charges, impositions (other than Taxes), and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property (collectively, "Other Charges"), now or hereafter levied or assessed or imposed against the Property or any part thereof in accordance with the Loan Agreement. Section 3.3. LEASES. Borrower shall not (and shall not permit any other applicable Person to) enter in any Leases for all or any portion of the Property unless in accordance with the provisions of the Loan Agreement. Section 3.4. WARRANTY OF TITLE. Borrower has good, indefeasible, marketable and insurable titleto the Property and has the right to mortgage, grant, bargain, sell,pledge, assign, warrant, transfer and convey the same. Borrower possesses an unencumbered fee simple absolute estate in the Land and the Improvements except for the Permitted Encumbrances, such other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan Documents. This Security Instrument, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a legal, valid, and perfected first priority lien on the Property, subject only to Permitted Encumbrances and the liens created by the Loan Documents 8 NY:1624699.5 FILED: NEW YORK COUNTY CLERK 12/02/2022 08:15 PM INDEX NO. 654609/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/02/2022 and (b) a legal, valid, and perfected first priority security interests in and to, and legal, valid, and perfected collateral assignments of, allpersonalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan Documents. Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of this Security Instrument and shall forever warrant and defend the same to Lender against the claims of all Persons whomsoever. Section 3.5. PAYMENT FOR LABOR AND MATERIALS. Subject to Borrower's right to contest any Work Charge (defined herein) pursuant to the terms of the Loan Agreement, Borrower will promptly pay (or cause to be paid) when due all bills and costs for labor, materials, and specifically fabricated materials incurred in connection with the Property (each, a "Work Charge") and never permit to exist beyond the due date thereof in respect of the Property or any part thereof any lien or security interest, even though inferior to the liens and the security interests hereof, and in any event never permit to be created or exist in respect of the Property or any part thereof any other or additional lien or security interest other than the liens or security interests hereof except for the Permitted Encumbrances. Borrower represents there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the liens created by the Loan Documents. Article 4 - FURTHER ASSURANCES Section 4.1. COMPLIANCE WITH LOAN AGREEMENT. Borrower shall comply with all covenants set forth in the Loan Agreement relating to acts or other further assurances to be made on the part of Borrower in order to protect and perfect the lien or security interest hereof upon, and in the interest of Lender in, the Property. Section 4.2. AUTHORIZATION TO FILE FINANCING STATEMENTS: POWER OF ATTORNEY.